A Digital Library of Alexandria: Google Books Remains Fair Use

In the latest development in a decade long case, the Second Circuit ruled on October 16th that Google Books was fair use and did not violate book copyrights. The service provides fully searchable digital versions of over 20 million books. This tally includes copyrighted work; additionally, the full text of many books in the public domain that have been digitized. The service works with the Google Books Library Project, which partners with major libraries to digitize the volumes; the project’s goal is “to create a comprehensive, searchable, virtual card catalog of all books in all languages.”

The lawsuit was initiated in September 2005 by a number of copyright owners, as well as the Authors Guild, a nonprofit that supports authors. Google defended its service under the fair use doctrine. The District Court granted summary judgment in Google’s favor in November 2013, from which the appeal followed.

The Second Circuit looked at the statutory factors involved in fair use, as well as prior case law on the subject. Ultimately, the panel concluded that the service was non-infringing fair use for three reasons: (1) the use was transformative, i.e. serving a function distinct from the copyrighted work; (2) the public display of copyrighted work was limited; and (3) the use was not a significant market substitute for the copyrighted works.

The ruling has been celebrated by many commentators as a victory for fair use. Mike Godwin of Slate proclaimed that the ruling “is good for everyone,” democratizing scholarly research. Matthew Ingram of Fortune argues further that the ruling benefits authors too, as their work becomes more accessible. Corynne McSherry of the Electronic Frontier Foundation applauded the court’s application of the fair use doctrine. Robinson Meyer of the Atlantic sees the ruling as beneficial for other companies trying to take advantage of the doctrine of fair use.

Predictably, the appellants were less enthused with the ruling. In a statement, the Authors Guild laments that “the court was unable to comprehend the grave impact that this decision . . . could have on copyright incentives and, ultimately, our literary heritage.” The organization maintains a page with links to briefs and a detailed presentation of its positions. And though the decision was unanimous, the first sentence of the ruling was less enthusiastic than many commentators: “This copyright dispute tests the boundaries of fair use.”

The decade long lawsuit may drag on a bit longer. The Authors Guild statement suggested that it might petition the Supreme Court. If the Supreme Court takes a less permissive view of fair use, perhaps this digital Library of Alexandria will still be burned down after all.